* Honorable John H. Moore, II, Senior U.S. District Judge for the Middle District of Florida, sitting by designation. [PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 97-8074

________________________ D. C. Docket No. 1:94-CV-2193-CC RUST INTERNATIONAL CORPORATION, Plaintiff-Third Party Defendant, FARID HABEISHI, Plaintiff-Third Party Defendant, Appellee,

versus GREYSTONE POWER CORPORATION, an Electric Membership Corporation, Defendant-Third Party Plaintiff, Appellant, JAMES CURTIS TERRY, Third Party Defendant-Appellee.

________________________ Appeal from the United States District Court for the Northern District of Georgia

_________________________ (January 26, 1998) Before ANDERSON and BLACK, Circuit Judges, and MOORE * , Senior District Judge.
PER CURIAM:1 Greystone also raised the following issues on appeal: (1) whether the district court erred in prohibiting Greystone from cross-examining Terry and Habeishi regarding the claims against each other they previously had settled; and (2) whether the district court erred in not admitting testimony from a law enforcement officer that the intersec tion had been navigated safely by vehicles passing through it for several hours prior to the accident. Af ter considering the briefs and record, we hold that the district court did not err in either of these evidentiary rulings.

2 Because we are reviewing the denial of a renewed motion for judgment as a matter of law, we consider the evidence, and stat e the facts in this part of the opinion, in the light most favorable to Appellees Terry and Habeishi. 2 This case arises from a motor vehicle accident in which a vehicle driven by Appellee James Curtis Terry (Terry) and a vehicle driven by Appellee Farid Habeishi (Habeishi) collided in an intersection where the traffic signal was inoperative. Terry and Habeishi each suffe red personal injuries, and Terry’s spouse and Habeishi’s spouse both died as a resu lt of the collision. Appellant Greystone Power Corporation (Greystone) had contracted with Fulton County, Georgia, to provide power to the traffic signals at th e intersection. The jury returned a verdict finding Greystone 75% liable for the accident. We address two issues raised by Greystone on appeal: (1) whether Greystone had a duty of care to Terry, Habeishi, and their respective spouses under Georgia law, and therefore can be held liable in tort; and (2) whether the district court erred in apportioning liability for the wrongful death actions based on Greystone’s percentage of fault rather than holding each of the joint tortfeasors jointly and severally liable in equal proportions. 1
I. FACTUAL AND PROCEDURAL BACKGROUND 23 The traffic signals that controlled the intersection failed in the early morning hours of August 23, 1992. Fulton County was informed of the power outage and sent a technician to examine the in tersection. Fulton County’s technician determined that the problem was a lack of power flowing to the signals from Greystone’s side of the power line. Fulton County notified Greystone of the problem at 9:00 a.m. and Greystone immediately dispatched its own technicians. Greystone’s technicians arrived at th e scene between 9:05 and 9:10 a.m. and inspected the connection between Greystone’s power wires and Fulton County’s wires, which carried the power directly to the signals. Greystone’s technicians erroneously concluded that the power fa ilure occurred on Fulton County’s side of the line and notified Greystone’s dispat cher at 9:30-9:35 a.m. that Fulton County needed to make the repair. The collision between Terry’s vehicle and Habeishi’s vehicle occurred at
10:00 a.m. After witnessing the collision, the Greystone technicians again examined the connections and concluded that the problem was with the connector, which Greystone had exclusive authority to repair. The Greystone technicians repaired the connector, thereby restoring power to the signals. The repair effort took 5-10 minutes to complete.3 The jury made the following valuations of the injuries suffered as a result of the accident: $2,181,000 for Terry’s personal injuries; $2,050,000 for the life of Terry’s wife; $1,517,000 for Habeishi’s personal injuries; and $3,000,000 for the life of Habeishi’s wife. Pursuant to the pretrial stipulation, the district court entered judgment against Greystone for 75% of each of these amounts. 4 The procedural history of this case is fairly complex. Several claims were settled. Four claims against Greystone were tried to the jury: (1) the claim of Terry for Terry’s personal injuries; (2) the claim of Terry for the wrongful death of his spouse; (3) the claim of Habeishi for Habeis hi’s personal injuries; and (4) the claim of Habeishi for the wrongful death of hi s spouse. The jury concluded that Greystone was negligent and that Grey stone’s negligence was a contributing proximate cause of the collision. The jury found Greystone 75% at fault, Terry 15% at fault, and Ha beishi 10% at fault. 3 The district court denied Greystone’s motion for judgment as a matter of law and Greystone’s renewed motions for judgment as a matter of law.
II. GREYSTONE’S DUTY OF CARE The parties dispute whether Greystone owed any duty of care to Terry and Habeishi. For a plaintiff to recover in tort, the defendant must owe a duty of care to the plaintiff. Ga. Code Ann. §§ 51-1-1, 51-1-8; Robinson v. J. Smith Lanier &
Co. , 470 S.E.2d 272, 274 (Ga. 1996). Terry and Habeishi argue that Greystone owes the same duty of care to the genera l public that tort law imposes on all individuals in conducting their affairs, speci fically that “a person owes to others a4 Sutter has been abrogated on other grounds as recognized in Riley v. H&H Operations, Inc. , 436 S.E.2d 659, 660-61 (Ga. 1993).

5 Greystone also asserts that its actions were not the proximate cause of the accident. Assuming that Greystone owed a duty of care to Terry and Habeishi, we hold that sufficient evidence was presented for the jury to determine that Greystone’s conduct was one of the proximate causes of the accident. 5 duty not to subject them to an unreasonable risk of harm.” Sutter v. Hutchings , 327 S.E.2d 716, 718 (Ga. 1985). 4 Greystone responds that a utility company does not owe a general duty of care to persons traveling through an intersection where the signals are powered by the utility company. 5 Greystone cites Tollison v. Georgia
Power Co. , 187 S.E. 181 (Ga. Ct. App. 1936), and Quinn v. Georgia Power Co. , 180 S.E. 246 (Ga. Ct. App. 1935), which stand for the proposition that a utility company owes no duty to the general public where an accident occurs due to the company’s failure to have a street lamp burning at the point of the accident. Quinn provides two rationales for its holding: (1) the absence of contractual privity between the power company and the general public; and (2) the absence of any duty upon the city to provide lighting at the poi nt of the accident. 180 S.E. at 248. Tollison arose from the same accident as Quinn , and the Tollison court relied on both of Quinn ’s rationales. 187 S.E. at 182. Terry and Habeishi argue in response that even if Greystone did not have a general duty to maintain power to the intersection, Greystone assumed a specific6 Ga. Code Ann. § 32-6-50 (c) provides that “counties and municipalities shall place and maintain upon the public roads of their respective public road systems such traffic-control devices as are necessary to regulate, warn, or guide traffic . . . .”

7 At oral argument, Appellees’ counsel conced ed that Greystone would have no liability had it not undertaken the repair effort. 6 duty to travelers passing through this particular intersection by voluntarily undertaking to repair the connector. Georgia has adopted § 324A of the Restatement (Second) of Torts entitled “Liability to Third Person for Negligent Performance of Undertaking,” which establishes that: One who undertakes, gratuitously or fo r consideration, to render services to another which he s hould recognize as necessary for the protection of a third person or his things, is subjectto liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third pe rson, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking. Huggins v. Aetna Cas. & Sur. Co. , 264 S.E.2d 191, 192 (Ga. 1980). The parties contest whether any of the three alterna tive criteria for imposing liability has been satisfied. The evidence presented at tr ial supports the conclusion that Greystone undertook to perform Fulton County’s duty to maintain the operability of the traffic signals, 6 or that Fulton County relied on Greystone to restore power to the intersection because Fulton County was contractually prohibited from repairing the connector itself. 7 Accordingly, Greystone’s negligence occurred at the moment that its8 Although Appellees’ counse l have responded to the argument that Tollison and Quinn provide blanket immunity from a duty of care voluntarily assumed by a power company, Greystone has not made any argument in its br iefs or at oral argument explaining why the rationales of Tollison and Quinn would override the standards for voluntarily assuming a duty of care pursuant to the Restatement. 7 technician misdiagnosed the problem withthe connector and therefore failed to exercise reasonable care in making the repair. The conclusion that Greystone voluntarily assumed a duty of care to Terry and Habeishi is not affected by the holdings in Tollison and Quinn

. 8 The Restatement, which was adopted after Tollison and Quinn, provides three methods by which a party such as Greystone may assume a specific duty towards third persons to whom it would not otherwise owe any duty. Tollison and Quinn do not foreclose the possibility that a power company might assume a specific duty towards third persons and then perform that duty in a negligent manner. Accordingly, we hold that under Georgia law, Greystone assumed a duty of care towards Terry and Habeishi to restore power to the intersection.
III. APPORTIONMENT OF LIABILITY Greystone argues that the district court erred by apportioning the judgment for the wrongful death claims among the three liable parties (Greystone, Terry, and Habeishi). Under Georgia law, liability may be apportioned among joint tortfeasors only if the plaintiff was negligent and was th erefore partly responsible for the injury.9 Greystone’s theory is based on the derivativ e nature of a wrongful death action—it is not an independent tort, but a method of allowing surv ivors to recover for the injuries suffered by the decedent. Greystone contends that the plaintiff of each wrongful death clai m is the deceased spouse (Mrs. Terry and Mrs. Habeishi, respectively) and that each claim has two to rtfeasors, each of whom should be 50% liable: (1) Greystone; and (2) th e non-spouse driver (i.e., Mr. Terry is the second defendant of Mrs. Habeishi’s action, and Mr. Habeishi is the second defendant of Mrs. Terry’s claim). Greystone suggests that Terry and Habeishi cannot be liable for the death of their own wives because of spousal immunity, meaning that only two defendants are liable in each action. 8 Ga. Code Ann. § 51-12-33. I f the plaintiff is not partly responsible for the injury, joint tortfeasors are equally liable for th e judgment, regardless of their relative degree of responsibility. Gamble v. Reeves Transp. Co. , 190 S.E.2d 95, 97 (Ga. Ct. App. 1972). After the jury determined that Grey stone was 75% responsible and that Terry and Habeishi were collectively 25% re sponsible, the district court apportioned liability for damages by entering a judgment against Greystone for 75% of the damages on all four claims. Greystone does not dispute the districtcourt’s apportionment for the personal injuries suffered by Terry and Habeishi. Greystone argues that in a wrongful death action, the relevant “plaintiff” is the deceased victim of the injury and not the beneficiary bringing the suit, i.e. , the deceased spouses of Terry and Habeishi and not Terry and Habeishi themselves. 9 Therefore, Greystone argues that the trial court erred in apportioning liability based on each party’s percentage of fault because the deceased spouses were not negligent.10 Blackwell was modified on other grounds by statute as recognized in Fountain v. Thompson , 312 S.E.2d 788, 789 (Ga. 1984). 9 Greystone is correct that Georgia law does look to the behavior of the decedent in determining the relative liabi lity of the defendant in a wrongful death action. Southland Butane Gas Co. v. Blackwell , 88 S.E.2d 6, 9 (Ga. 1955); 10 Rainey v. City of East Point , 328 S.E.2d 567, 568-69 (Ga. Ct. App. 1985). However, Georgia law also looks to the negligence of the beneficiary of the action and applies the same principles of contributory and comp arative negligence to the beneficiary as it applies to the decedent. Happy Valley Farms v. Wilson , 16 S.E.2d 720, 725 (Ga. 1941) (establishing that when two be neficiaries bring a wrongful death action and one beneficiary is partly responsib le for the death, contributory negligence principles are applied to the one-half of the judgment recovered by the negligent beneficiary); Matthews v. Douberly , 428 S.E.2d 588, 590- 91 (Ga Ct. App. 1993) (finding that husband’s contributory negligen ce bars husband’s recovery in action for wrongful death of wife, but doe s not bar child’s recovery). We hold that Georgia law treats both the beneficiary and the decedent as plaintiffs when determining whether to apportion liability in a wrongful death action.
IV. CONCLUSION The district court properl y determined that under the facts of this case, Greystone owed a duty of care to Terry, Habeishi, and their respective spouses.10 Furthermore, the district court did not err in apportioning the judgment among the liable parties.
AFFIRMED.